T-2449-80
Sealed Air Corporation and Sealed Air of Canada,
Ltd. (Plaintiffs)
v.
Alros Products Limited (Defendant)
Trial Division, Mahoney J.—Ottawa, June 17 and
18, 1980.
Practice — Motion for an order permitting inspection of
methods and machines used by defendant in the manufacture
of the alleged infringing material, and of records relevant
thereto — Defendant had not filed a statement of defence, nor
asked for particulars nor objected to sufficiency of plaintiffs'
pleading — Application dismissed — Patent Act, R.S.C. 1970,
c. P-4, s. 59(1)(b) — Federal Court Rule 471.
MOTION.
COUNSEL:
J. Guy Potvin for plaintiffs.
I. Goldsmith, Q.C. for defendant.
SOLICITORS:
Scott & Aylen, Ottawa, for plaintiffs.
I. Goldsmith, Q.C., Toronto, for defendant.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This action for patent infringe
ment was commenced by a statement of claim
filed May 23, 1980. The plaintiffs now move, by
notice of motion filed June 6, for an order, pursu
ant to Rule 471 and paragraph 59(1)(b) of the
Patent Act, R.S.C. 1970, c. P-4, permitting inspec
tion of the methods and machines used by the
defendant in the manufacture of the alleged
infringing material and process and of records and
documents relative thereto. They seek such order
to obtain particulars for the purpose of pleading.
The defendant has neither filed a statement of
defence, asked for particulars nor objected to the
sufficiency of the plaintiffs' pleading in any
respect.
The relevant factual situation is identical to that
recently considered by the Associate Chief Justice
in Amfac Foods Inc. v. C. M. McLean Limited,' in
which he held [at page 72]:
... that an inspection ought to be permitted only when the
applicant satisfied the Court of the need for it, that the
plaintiffs have advanced no such grounds and in fact none
exists. Indeed, in the material on file no need is suggested by
the plaintiffs and during the course of reply, counsel for the
plaintiffs could only contend that the inspection was necessary
to determine whether an amendment to the statement of claim
might be required, to identify the issues with precision and to
ensure the best evidence for trial. No application for an amend
ment to the pleadings has been made, the statement of claim is
not under attack and there is no demand for particulars.
The plaintiffs rely on an even more recent order
made by Mr. Justice Cattanach in Kuhlman Cor
poration v. P. J. Wallbank Manufacturing Co.
Limited. 2 There, the notice of motion by the plain
tiff seeking an order for inspection was filed with
the statement of claim or, perhaps, later the same
day. However, the defendant moved to strike cer
tain paragraphs of the statement of claim "on the
ground that there have been no allegations of
material facts from which it would follow that"
the patents in issue had been infringed. That
motion to strike was before the Court at the same
sitting as the plaintiff's motion for inspection and
Mr. Justice Cattanach dealt with both in the same
reasons, dismissing the motion to strike and grant
ing the inspection order.
The fact that, by the time the motion for an
inspection order got before the Court, the state
ment of claim in the Kuhlman case was under
attack on a relevant basis distinguishes it from the
Amfac situation and that which is presently before
me. There is no present need for the order sought.
The application will be dismissed without preju
dice to the plaintiffs' right to re-apply at a later
stage.
ORDER
The plaintiffs' application pursuant to Rule 471
and paragraph 59(1)(b) of the Patent Act is dis
missed with costs but without prejudice to their
right to re-apply at a later stage of the
proceedings.
' Supra, at page 71.
2 [1981] 1 F.C. 639.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.